ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001554
Dispute for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 28/07/2016
At: Workplace Relations Commission, Dublin 4.
The Complainant has been employed since 1997, initially as a Shop Assistant and subsequently as a Team Leader in 2013, a position she currently holds. The Complainant has been working Monday to Friday since 1997 but in July 2015 she was requested to work one in four Sundays. She refused and raised a grievance into an alleged breach of her contract of employment. The issue was not resolved and the dispute was referred to the Workplace Relations Commission on 25th January 2016.
Summary of Complainant’s Position.
The Complainant has been employed as a Sales Assistant and subsequently as a Team Leader since 2013 on a 39 hour Monday to Friday Contract. There is a Collective Agreement in operation since 2006 all employees of the Respondent at that time were issued with a checklist outlining their terms and conditions that were to remain unchanged. – Copy provided. The Complainant’s list states “does not work Bank Holidays or Sundays…. Works Sundays at Christmas through choice”.
The Complainant was promoted Team Leader in 2013 and in line with the agreement of 2006 the Complainant continued to work her Monday to Friday Contract of Employment. However in November 2013 the Respondent issued the Complainant with a new Contract of Employment but the Complainant refused to accept it or to sign it as it did not reflect her Contract of Employment as per the 2006 Agreement.
The Respondent approached the Complainant in May 2015 requesting her to be more flexible. The Complainant agreed to change her hours from Monday to Friday to accommodate longer opening hours. Management agreed to this. In July 2015 the Respondent again approached the Complainant seeking more flexibility in the form of working Sundays. The Respondent continued to put pressure on the Complainant resulting in the Complainant lodging a Grievance. This was heard by the Respondent on 28th August 2015 but they failed to issue an outcome letter until 19th November 2015. The Complainant lodged an appeal on 24th November 2015 and this was rejected by letter dated 21st January 2016.
The dispute was referred to the WRC under the Industrial Relations Act, 1969.
The Complainant stated that she is agreeable to work one in four Sundays provided this change is outlined in writing to her.
Summary of Respondent’s Position.
The Complainant commenced employment as a Customer Assistant in June 1997 and was promoted to Team Leader in 2013. She worked Monday to Friday from 1997 to 2015. However in July 2015 due to operational reasons she was requested to work one Sunday in four. At the time she refused and raised a grievance.
At the time of her promotion she refused to sign her new contract of employment. The Respondent stated that in accepting her new role she accepted her new terms and conditions of employment associated with the position by default.
The Complainant met with her Store Manager in May 2015 in relation to being more flexible. She was being required to work one in four Sundays. The Complainant refused stating this was not part of her original contract of employment. There were two further meeting in May and June 2015. The Complainant submitted a grievance. Her grievance was not upheld. She appealed the outcome but her appeal was not upheld.
Both Parties confirmed at the Hearing that neither of them could locate the Complainant’s Contract of Employment from 1997.
Both Parties also confirmed at the Hearing that the Complainant has been working Monday to Friday since 1997. Therefore in line with custom and practice it must be assumed that this is the Contract of Employment the Complaint had in 1997.
Both Parties confirmed there was a Collective Agreement reached in 2006 and that following that Agreement all employees were to be given a checklist of their terms and conditions of employment. The Complainant did have a copy of this Checklist – copy provided, the Respondent did not have a copy. This clearly states “Works Sundays @ Christmas through choice. Does not work Bank Holidays or Sundays otherwise”. This is headed 2006 Agreement/Staff Checklist. This is confirmation in 2006 that the Complainant did not work Sundays.
Both Parties confirmed at the Hearing that the Respondent wished the Complainant to work one Sunday in four and the Complainant confirmed that she is prepared to show this flexibility and to work one Sunday in four. So both Parties are agreeable to the proposal.
The remaining obstacle to the implementation of this agreed position is that this should be put in writing to the Complainant by the Respondent.
In accordance with Section 13 of the Industrial Relations Act, 1969 I recommend that the Respondent should confirm the agreement in writing to the Complainant that the Complainant is willing to work one in four Sundays but this is the only change agreed to her implied terms and conditions of employment that she works Monday to Friday. This change can be incorporated into revised Terms and Conditions.
I recommend this to the Parties.
Date 3rd November 2016